By Fausta Fonju Ndemesah
A wind of change of constitutional amendments is blowing through the continent. The line to retouch the constitutions is long after the "successful" experience of Chad, Mauritania, Tunisia, Guinea, Gabon, Togo, Burkina Faso, Cameroon etc.
But what is the rationale behind the amendments. Is it pushed by political interest or by the need to adjust these constitutions to meet societal changes? If the legality of constitutional changes in the continent cannot be put into question, many observers have thrown great doubts on the legitimacy of these frequent constitutional amendments.
Every Constitution, for the simple fact that it is made by man, can be revised to adapt it to the dynamic socio-political, cultural and political will of the society. Just like every living institution, a Constitution can be modified to adjust it to its time. This has to be done bearing in mind the will to produce a collective benefit.
The
views of the prime constituent, that is the people, have to be
respected. No legal modification can be viewed as legitimate if it does
not put the will of the people first.
Frequent constitutional amendments in many African countries have
pushed many constitutionalists to find out the rationale behind the
frequent modifications.
The 90s And Its Broad Base Retouches
Many African Constitutions were retouched around the 90s. The democratic wind that blew throughout the continent pushed the balance of imposition for some time in the hands of the "reformist" who asked for a break away from dictatorial one-party systems to a democratic system of government.
Many Constitutions were amended during this period to express the wish, solve and stop the advancement of the problems caused by former Constitutions. Most of the constitutional amendments were done with the "never again" motive. This was possible because the political climate of the time had removed a large piece of power from the hands of post colonial rulers.
Many amendments were done within a broad base debate. In some countries the rulers tried to manipulate the participation. For some countries, they were able to produce partial success. Nonetheless, the role was instead a great participation of the people whose vigilance and desire for change helped to produce many Constitutions, which harboured progressive ideas of citizenship and nation building.
New Constitutions came out after national conferences with their various naming and content from one country to the other; National Convention in Congo Brazzaville (2001), Forum for Democratic Renewal in Niger (1996), National Dialogue in Central Africa and the Tripartite in Cameroon). Despite the diversity in appellations and contents of these "national conferences", many Constitutions that were born after these meetings had some fixed objectives.
They all wanted to give an answer to the desire of change expressed by their citizens by producing a Constitution that says "never again" to tyranny and poor governance that characterised the former systems. Many points focused on aspects such as the limitations of the president's term of office to two mandates; declaration of assets, depoliticising the army, adaptation to international human rights orders and the fight against corruption.
Many countries - Senegal (2001), Burkina Faso (1991, 1997), Gabon (1994, 1995), and Cameroon (1991, 1996) that amended the constitution of 2 June 1972 - retouched their Constitutions during this period.
One Step Forward, Three Steps Backward
The beginning of the new millennium is characterised by frequent constitutional changes that have pushed many political scientists and constitutionalists to question the democratic rationale underlying the frequent constitutional amendments.In a country like Senegal, the Constitution of January 22, 2001, had already been amended seven times. In President Wade's few years in power, the Constitution has been retouched 12 times in seven years, while the former ruling government retouched the 1963 Constitution only four times.
Gabon has retouched the 1994 Constitution in 1995, 1997 and 2003, while Burkina Faso made amendments in 1997, 2000 and 2002. For many constitutionalists, it is not the legality of the frequent changes that is questioned but the various motives put forward to justify the changes.
Many argue that the frequent changes are pushed by the will of many leaders to maintain their grasp to power for eternity. For example, some analysts argue that the amendment done in 2000 in Gabon was pushed by the desire to maintain President Omar Bongo in power. The same argument has been used to explain the constitutional changes in Chad, Burkna Faso and Cameroon.
Some of these leaders were forced to use the army to intimidate and silence the opposition and civil opinion leaders to succeed in their endeavours. The imprisonment of leaders of the civil society such as Lapiro de Mbanga and Joe La Conscience are clear examples. The leading opposition leader in Chad had to seek refuge in exile for a while following threats to his life because of his objection to the constitutional change in his country.
Many observers argue that most post-independent leaders are trying to wipe the slates carrying their atrocities by seeking for constitutional immunities after their mandate. For example, the last point of Article 78 of Gabon's 1991 Constitution states that the president of the republic cannot be followed, arrested and punished judicially after the end of his mandate.
This article has been copied by the 2008 amendment brought to the 1996 Constitution of Cameroon.In addition to putting African presidents above the law against the will of the people, many of the new modifications have erased the limitation of mandate introduced by most Constitutions born after national conferences. These articles, which seem to look at the egoistic interests of the leaders, have pushed many to question the legitimacy of the various revisions.
Despite the powerful egoistic principle that seems to govern many constitutional changes in the continent, some positive points may be traced in some modifications. Unlike the Gabonese and Cameroon Constitutions, which provide immunity to former head of states, the Senegalese assembly April 8, voted against the political immunity of former presidents, opening the way for the deliverance of former Chadian President, Hissène Habré, accused of crimes against humanity to be judged by the International Tribunal.
The Senegalese Constitution has moved a step forward from its gender blindness. The new Constitution is gender sensitive and defends the parity between women and men.
This article states the obvious,what has been said time and again ab't the trend of ammendments of the 'Grundnorm" in many African nations.However,I disagree with the author on the last but one paragraph when he says"...opening the way for the deliverance of former Chadian President,Hissène Habré,accused of crimes against humanity to be judged by the International Tribunal".
Firstly,the author doesn't state the specific 'International Tribunal' for there are several of them.Secondly,Hissène Habré wasn't delivered to and tried by an International Tribunal.His trial is in a Senegalese court.Notwithstanding the fact international pressure came to bear on Senegal to try the erstwhile dictator.
What's interesting ab't this case is the fact that Senegal showed to the world that an African c'ntry is capable of bringing former bloody African tyrants to justice.And that there's no safe haven for dictators on the continent.
Posted by: Essono | Thursday, 18 September 2008 at 10:52 AM